Sunday, July 5, 2009

"Freedom Fighter" Contemplates Life Without Lawyers

After finding himself embroiled for years in bitter patent infringement lawsuits over frequency modulation (FM) royalties with battalions of corporate litigators, inventor Edwin Howard Armstrong famously said that the legal system is "a world where men substitute words for realities and then talk about the words."

[In a 2007 article about then-Congressman Bobby Jindal, National Review Online pointed out that gambling is a crime under the Louisiana constitution, but in 1991, state legislators wrote a law that specifically defined "riverboat gaming" as not gambling.]

Armstrong would have probably appreciated Philip K. Howard's new book Life Without Lawyers (W.W. Norton, 2009). Howard, a prominent lawyer himself, is the founder of Common Good, a nonprofit, nonpartisan legal reform coalition.

Howard's expertly written and documented book argues for a world just the opposite of what Armstrong encountered in his protracted legal struggles: one that would restore freedom, spontaneity, sound decisionmaking, common sense, and economic vitality to individuals and organizations. Howard advocates persuasively for a new, modern legal structure that leaves room for local initiative and authority.

In a book peppered with real-world examples and perceptive quotes from philosophers, the author argues that daily freedom in contemporary America has been undermined by the legal system obsessed with individual rights that ironically infringe on the rights of other individual citizens who operate in good faith. He sums up the thesis of his book as follows: "Freedom can be destroyed by tyrants, by lawlessness--and by too much law." He adds that "to restore our freedom, we have to purge law from most daily activities."

Among other significant issues, Howard describes how law has transformed your local public school into a "regulatory agency" with excessive red tape that prevents removing menacing, violent students or incompetent teachers from the classroom, how negligence lawsuits restrict normal and healthy activities, and employment disputes undermine personal accountability and unleash a wave of unintended negative consequences.

As we pointed out in a previous post, managers often make unfair, arbitrary decisions in the workplace detrimental to hardworking, conscientious employees. By the same token, however, Howard perceptively observes that “law can guard against overt patterns of discrimination, but intervening in specific employment decisions creates a hopeless morass."

Law is supposed to be a structure that promotes our freedom. It does this by setting boundaries that define an open field of freedom. Instead law has moved in on daily life, becoming the arbiter of potentially every disagreement in a free society. We've asked law to do too much--trying to enforce fairness in daily relations is not freedom, but a form of utopia that predictably degenerates into squealing demands for me, me, me.

As we mentioned in a prior post, a court opinion doesn't just decide one case; judicial precedent can have a ripple-effect with broad social ramifications for everyone. With this mind, Howard says that lawmakers should pass the following statute:

Judges shall take the responsibility to draw the boundaries of reasonable dispute as a matter of law, applying common law principles and statutory guidelines. In making these rulings, judges shall consider the potential effects of claims on society at large.

Howard calls Washington a land of "political make believe" obsessed with oneupsmanship and posturing that has "sunk into an ocean of law, rules, and processes." He adds that "American needs to rewrite its legal and regulatory codes. Bulldozing is not too strong a term. Most of the laws and rules long ago lost their connection real problems and real people."

Part of the systemic problem, Howard explains, is that we have evolved into a hyper risk-averse society:

In the age of individual rights, however, American leaders have been told not to focus on the odds. Instead they focus on the effect of one person. No one wants bad things to happen to other people, but in America today we try to make public policy by looking at the effect of one situation on one person. Uncle Sam has become a kind of mad scientist, peering all day through the microscope to identify risks to individuals instead of looking at the effect on everyone. Any risk is cause for a campaign to eradicate it. With enough money and effort, we assume, we can create a world without danger or disappointment….Risk, unfortunately, is inherent in all life choices. Every choice involves a risk. Every movement involves a risk. Doing nothing involves risk. Crossing the street, exercising, taking a job, getting married, all involve risks Risk is just the flip side of opportunity--do away with risks and we lose all chance for accomplishment.

To remedy these problems, Howard advocates targeted courts for areas of special expertise (such as "heath courts" to deal with medical malpractice), more authority vested in local leaders (such as teachers and school principals, and business managers), greater accountability for impossible-to-fire government service employees, and more decentralized civic involvement and accountability brought about by voluntary mediation bodies.

In stressing that accountability should be based on accomplishment rather than legal/bureaucratic conformity, Howard has the right idea in his crusade for responsible personal freedom. Howard expertly diagnoses the flaws in the legal system, but his solutions may be overly optimistic, if not pie in the sky. (We previously expressed similar sentiments in connection with Thane Rosenbaum's otherwise compelling book.) We're also not buying his glowing references to Al Gore's superficial-at-best reinventing government initiative. And as a practical matter, with the Obama administration completely in the tank for the trial lawyers and labor unions, real reform appears unlikely if not impossible, at least in the near term. (Highly politicized judicial appointments have not been in the best interests of our society--how would the health courts, for example, avoid the ideological divisions that permeate the federal and state courts?)

Philip Howard's take on healthcare reform--in which he proposes a complete overhaul of the healthcare system's reimbursement, regulatory, and liability structures--can be found here.